BRADLEY v. Home Depot U.S.A. Inc., et al., Defendants-Respondents-Appellants,

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Supreme Court, Appellate Division, First Department, New York.

Robert BRADLEY, et al., Plaintiffs-Appellants-Respondents, v. IBEX CONSTRUCTION, LLC, Defendant-Respondent, Home Depot U.S.A. Inc., et al., Defendants-Respondents-Appellants,

Ruttura & Sons Construction Co., Defendant. IBEX Construction, LLC, Second Third-Party Plaintiff-Appellant, v. Sage Electrical Contracting, Inc., Second Third-Party Defendant-Respondent. [And a Third-Party Action].

Decided: September 25, 2008

SAXE, J.P., NARDELLI, MOSKOWITZ, ACOSTA, DeGRASSE, JJ. Harry I. Katz, P.C., New York (Paul F. McAloon of counsel), for appellants-respondents. French & Rafter, LLP, New York (Howard K. Fishman of counsel), for IBEX Construction, LLC, respondent-appellant. D'Amato & Lynch, LLP, New York (Arturo M. Boutin of counsel), for Home Depot U.S.A., Inc. and 23rd St. Properties, LLC, respondents-appellants. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville (Eileen M. Baumgartner of counsel), for Sage Electrical Contracting, Inc., respondent.

Judgment, Supreme Court, New York County (Walter J. Relihan, Jr., J. at trial and post-trial motion to set aside verdict;  Louis B. York, J. on post-trial motion to dismiss third-party action and cross claims), entered December 5, 2007, after a jury verdict in favor of defendants on the issue of liability under Labor Law § 240(1), unanimously modified, on the law, plaintiffs' motion to set aside the verdict granted, judgment directed in favor of plaintiffs on the issue of liability pursuant to § 240(1), the claims and cross-claims for indemnification against second third-party defendant Sage Electrical Contracting, Inc. reinstated, the matter remanded for trial on damages and apportionment of fault among defendants, and otherwise affirmed, without costs.   Appeals from orders, same court (Rosalyn Richter, J.), entered June 8, 2006, and (Walter J. Relihan, J.), entered December 15, 2006, which, to the extent appealed from as limited by the briefs, denied plaintiffs' respective motions for partial summary judgment on their § 240 (1) claim, and to set aside the verdict, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

 The motion court properly denied plaintiffs' motion for partial summary judgment.   Plaintiffs established a prima facie case that defendants and second third-party defendant violated Labor Law § 240(1) by failing to ensure the proper placement of the ladder due to the condition of the floor, but a triable issue of fact was raised by the accident report, which indicated that plaintiff worker had tripped on the plastic-covered floor and did not fall from the ladder (see e.g. Potter v. NYC Partnership Hous. Dev. Fund Co., Inc., 13 A.D.3d 83, 85, 786 N.Y.S.2d 438 [2004];  cf. Klein v. City of New York, 89 N.Y.2d 833, 835, 652 N.Y.S.2d 723, 675 N.E.2d 458 [1996] ).   The court properly determined that the accident report was admissible as a business record (see Buckley v. J.A. Jones/ GMO, 38 A.D.3d 461, 462-463, 832 N.Y.S.2d 560 [2007] ).   A proper foundation was established for admission of the accident report into evidence under the business record exception to the hearsay rule (see Petrocelli v. Tishman Constr. Co., 19 A.D.3d 145, 797 N.Y.S.2d 12 [2005] ).   Accordingly, denial of plaintiffs' motion for a directed verdict on the issue of liability was proper because the accident report raised an issue of fact as to whether the alleged violation of § 240(1) proximately caused his accident (see e.g. Holt v. Welding Servs., 264 A.D.2d 562, 563, 694 N.Y.S.2d 638 [1999], lv. dismissed 94 N.Y.2d 899, 707 N.Y.S.2d 143, 728 N.E.2d 339 [2000] ).   The trial court properly charged the jury as to sole proximate cause (see PJI3d 2:217, at 1153 [2008];  Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757 [2003] ).

However, the motion court improperly denied plaintiffs' post-trial motion to set aside the verdict and for judgment notwithstanding the verdict.   Since the jury determined that plaintiff worker fell off the ladder, it could not have reasonably concluded, in light of the evidence, that the ladder was placed and used so as to give him proper protection in the performance of his work.   Other than the accident report, which the jury clearly rejected, defendants and second third-party defendant failed to present any evidence controverting plaintiffs' version of the accident, i.e., that the ladder had slipped on the plastic-covered floor.   Furthermore, there was no evidence to suggest that plaintiff worker's own actions were the sole proximate cause of his injury (see Bonanno v. Port Auth. of N.Y. & N.J., 298 A.D.2d 269, 750 N.Y.S.2d 7 [2002] ).   The inconsistencies between his trial testimony and his prior statements were not material to the issue of how the accident occurred, and he consistently testified that he had fallen because the ladder had slipped on the plastic (see e.g. Ernish v. City of New York, 2 A.D.3d 256, 257, 768 N.Y.S.2d 325 [2003] ).

 The motion court properly granted second third-party defendant's motion to dismiss that third-party action and any cross claims for indemnification against it.   The trial court clearly directed that any post-trial motions, including motions regarding indemnification, be submitted to the court within 15 days of the verdict.   Since defendants IBEX, Home Depot and 23rd St. failed to move within the 15 days or to assert their indemnification claims in response to plaintiffs' timely motion as required by CPLR 4406, and failed to give an adequate reason for the delay, their claims were properly dismissed at that time (compare Tesciuba v. Cataldo, 189 A.D.2d 655, 592 N.Y.S.2d 326 [1993], lv. dismissed 82 N.Y.2d 846, 606 N.Y.S.2d 597, 627 N.E.2d 519 [1993], with Brown v. Two Exch. Plaza Partners, 146 A.D.2d 129, 140, 539 N.Y.S.2d 889 [1989], affd. 76 N.Y.2d 172, 556 N.Y.S.2d 991, 556 N.E.2d 430 [1990] ).   Nevertheless, our reinstatement of plaintiff's claims against defendants is a fundamental change in those circumstances, and the concomitant reinstatement of defendants' claims and cross-claims against Sage for indemnification, which arise out of those claims, is now warranted.

The Decision and Order of this Court entered herein on June 26, 2008 is hereby recalled and vacated (see M-3702 decided simultaneously herewith).